Three Felonies a Day

by Harvey Silverglate

  55 Id. at 56.

  56 Muntasser’s legal team, by the time his post-trial motions were filed, consisted of a number of seasoned criminal and constitutional trial and appellate litigators, including the Boston law firm of Zalkind, Rodriguez, Lunt & Duncan, LLP; Professor Susan Estrich of the University of Southern California Law School; and Kathleen Sullivan, former Dean of the Stanford Law School and by then a partner in the litigation boutique Quinn, Emanuel, Urquhart, Oliver & Hedges, LLP. None of them were able to make much sense of the government’s innovative theory of prosecution. Indeed, the IRS obviously had its own qualms over the clarity of the particular form and its instructions to the user. In the year 2000 the IRS changed the form and attempted to clarify the instructions. This implicit recognition that something was wrong with the form and instructions did not, however, stop the Department of Justice from indicting Muntasser.

  57 BNA’s Health Law Reporter, Vol. 17, No. 10, March 6, 2008, at p. 355.

  58 Bench decision on Rule 29 motion, transcript at 7.

  59 Id. at 9.

  60 United States v. Anzalone, 766 F.2d 676 (1st Cir., 1985).

  61 Case Note/Recent Cases, The Harvard Law Review, Volume No. 120, page 821 (2007), critiquing United States v. Rosen, 445 F.Supp.2d 602 (E.D. Va. 2006).

  62 Michael Massing, “The Storm over the Israel Lobby,” The New York Review of Books, Vol. 53, No. 10, June 8, 2006.

  63 18 U.S.C. § 793(e).

  64 Jeffrey Goldberg, “Real Insiders,” The New Yorker, July 4, 2005.

  65 Id.

  66 United States of America v. Steven J. Rosen and Keith Weissman, Case No. 1:05cr225, United States District Court for the Eastern District of Virginia (Alexandria Division), “Memorandum Opinion” on motion to dismiss, dated August 9, 2006.

  67 “Memorandum Opinion” in Rosen and Weissman case, at 51. The Morison case is reported at 844 F.2d 1057, 1988 U.S. App. LEXIS 4066 (4th Cir. 1988).

  68 United States v. Rosen and Weissman (4th Cir. 2009), decided February 24, 2009. Prosecutors later dropped the prosecution in May 2009.

  Conclusion:

  1 Stephen G. Sozio & Earnest B. Gregory, “Growing trend: prosecution for workers’ injuries, deaths,” The National Law Journal, July 18, 2005.

  2 David Barstow and Lowell Bergman, “With Little Fanfare, a New Effort to Prosecute Employers That Flout Safety Laws,” The New York Times, May 2, 2005.

  3 The Wrongful Death Accountability Act, introduced by Senator Jon Corzine (D. NJ), would have established 10-year sentences for violations. See S.1272, 108th Cong. (2003).

  4 A bookdealer using this email service would obtain an address ending in “@interloc. com.” Interloc was merged into Alibris, a corporation that eventually became involved in the business of dealing in used and rare books.

  5 Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002).

  6 United States v. Councilman, 245 F. Supp. 2d 319 (D. Mass. 2003).

  7 Id. In his written opinion, Judge Ponsor noted with irony that in Konop the federal government had supported defining the Wiretap Act to exclude from coverage any temporarily stored electronic communications. Because the prosecution’s interests in the Councilman case, where the government was the accuser rather than the potential accused, would benefit from a more inclusive and expansive interpretation, the Department of Justice “now argues that at least a portion of that [Konop] decision should be ignored.”

  8 United States v. Councilman, 373 F.3d 197, 218 (1st Cir. 2004) (Lipez, dissenting). A different issue is presented when a statute or regulation gives specialized meaning to a word, in which case the dictionary or common meaning goes out the window. See, for example, the Leichter prosecution, discussed in Chapter Three. However, Councilman was not such a case.

  9 Pauline Jelinek, Associated Press, “Defense Official Resigns Over Remarks,” The Washington Post, February 2, 2007, available at http://www.washingtonpost.com/wpdyn/content/article/2007/02/02/AR2007020200940.html.

  10 Anthony Sebok & Spencer Weber Waller, “The Deputy Assistant Secretary of Defense Suggests A Boycott of Law Firms that Represent Guantanamo Detainees,” Findlaw.com, January 16, 2007, available at http://writ.lp.findlaw.com/commentary/20070116_waller.html (explaining why Stimson’s comments may have indicated official policy views); David Yas, Editorial, “The castigating of Cully is proud moment for lawyers,”Massachusetts Lawyers Weekly, January 22, 2007, available at http://www.masslawyersweekly.com/cully.cfm; Lisa Wangsness, “Law school deans sign letter condemning boycott: Pentagon official provoked outcry,” The Boston Globe, January 16, 2007, available at http://www.boston.com/news/local/articles/2007/01/16/law_school_deans_sign_letter_condemning_boycott/. Note that the Pentagon was quick to repudiate Stimson’s remarks when pressure came to bear. See id.;“The Best Defense,” Blog Post, Washington Wire Blog, The Wall Street Journal Online, January 12, 2007, available at http://blogs.wsj.com/washwire/2007/01/12/the-best-defense/.

  11 Pauline Jelinek, Associated Press, “Defense Official Resigns Over Remarks,” The Washington Post, February 2, 2007.

  12 “No Bill of Attainder or ex post facto Law shall be passed.” Article I, Section 9, Clause 3. States are prohibited from enacting such laws by Article I, Section 10, Clause 1.

  13 Black’s Law Dictionary, 8th ed. (West Group, 1999), at p. 620.

  14 Sorich v. United States, U.S. Supreme Court Docket No. 08-410 (February 23, 2009).

  15 18 U.S.C. § 1346.

  16 McNally v. United States, 483 U.S. 350 (1987).

  17 Scheidler v. National Organization for Women, Inc., 547 U.S. 9 (2006).

  INDEX

  ABA (American Bar Association)

  abortion

  abuse of controlled pain-killers. See pain management, medical practice of

  academics, dual citizen

  accepted medical practice, standard for

  ACLU (American Civil Liberties Union)

  Actiq®

  actus reus

  Adams, John

  addiction, drug

  Afghanistan, Muntasser and

  AFL-CIO

  aggressive picketing

  aggressive tax shelters

  AIDS wasting syndrome

  AIG (American International Group)

  AIPAC (American Israel Public Affairs Committee)

  Akin Gump Strauss Hauer & Feld

  Aleve®

  Alford, North Carolina v. (1970)

  al-Hussayen, Sami Omar

  Alice’s Adventures in Wonderland (Carroll)

  Amazon.com

  American Bar Association (ABA)

  American Civil Liberties Union (ACLU)

  American Gastroenterological Association

  American International Group (AIG)

  American Israel Public Affairs Committee (AIPAC)

  American Pain Society

  American Type Culture Collection (ATCC)

  amphetamines

  analgesics

  angioplasty

  Angiulo, Donato “Danny,”

  Angiulo, Francesco “Frank,”

  Angiulo, Gennaro “Jerry,”

  Angiulo, Jason

  Angiulo, Michele “Mike,”

  Angiulo, Nicolo “Nick,”

  anti-abortion protestors

  anti-fraud laws

  anti-inflammatory medicines, over-the-counter

  anti-picketing laws

  Anzalone, Joanne Prevost

  Anzalone, Theodore

  Anzalone, United States v.

  Arthur Anderson, LLP

  Ashcroft, John

  Assange, Julian

  assisted suicide

  AstraZeneca

  ATCC (American Type Culture Collection)

  Atomic Energy Act of 1954,

  atomic weaponry secrets

  attorney-client privilege

  Attorneys General dual role of power to make medical decisions

  Avery, Bert M.

  Azima, Parnaz

  Bacanovic, Peter

>   Bache, Benjamin Franklin

  Baker, Jeanne

  balance of powers

  bar, independent

  barbiturates

  Barcella, E. Lawrence

  Barnes & Noble

  Barnett, Thomas O.

  Barrionuevo, Alexei

  benefit, passive acceptance of

  Bennett, Dale

  Bennett, Robert S.

  Beria, Lavrenti

  Berkshire-Hathaway

  Bevilacqua, Joseph A., Jr.

  Bingaman, Anne K.

  bioterrorism

  Black Panther Party

  Black Political Task Force (BPTF)

  blackmail

  Blackmun, Harry

  BLIPS (Bond Linked Issue Premium Structure)

  Boesky, Ivan

  Bokat, Stephen

  Bond Linked Issue Premium Structure (BLIPS)

  Bordeaux, Deborah

  Boston Health Care Fraud Unit

  BPTF (Black Political Task Force)

  Brandeis, Louis

  Branzburg v. Hays

  Breeden, Richard

  Breyer, Stephen

  bribery

  ABA and

  Anzalone and

  extortion vs.

  Flaherty and

  of judges

  Martinez and

  Scrushy and Siegleman and

  Serono and

  of state officials

  TAP Pharmaceuticals and,

  87–88

  of witnesses,

  xlvii–xlviii

  Broadcom Corporation

  Buffett, Warren

  Bureau of Narcotics and Dangerous Drugs

  Burkle, Ronald W.

  Bush, George W.

  business purpose doctrine

  Cable News Network (CNN)

  cachexia

  CAE (Critical Art Ensemble)

  Caldwell, Earl

  Caldwell, Leslie R.

  Cambria, Paul, Jr.

  Campbell, James N.

  capital assets

  capricious prosecution

  Cardoso, Silvio

  Care International, Inc.

  Carlat, Daniel J.

  Carney, Cormac J.

  Carroll, John

  Carroll, Lewis

  Carter, Jimmy

  Casale, Robert M.

  Cash Transaction Report (CTR)

  cash-laundering. See money-laundering

  cataplexy

  catheters, heart

  C.E. Maguire Company

  Cedarbaum, Miriam Goldman

  Central Intelligence Agency (CIA)

  CHAMPUS (Civilian Health and Medical Program of the Uniformed Services)

  Chanos, James

  Char, Richard

  checks and balances. See balance of powers

  Chertoff, Michael

  Chicago Tribune, espionage and

  child pornography, possession of

  chronic pain. See pain management, medical practice of

  CIA (Central Intelligence Agency)

  Cintolo, William J.

  Citizenship and Immigration Services

  civil contempt, news media and

  civil liberties lawyers, criminal defense attorneys as

  civil rights movement

  civil vs. criminal prosecution

  Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)

  Class III medical devices

  classification of drugs

  Clifton, Doug

  climbing the ladder. See ladder climbing

  Clinton, Bill

  CNN (Cable News Network)

  cocaine

  COCOM (Coordinating Committee on Multilateral Export Controls)

  Code of Federal Regulations

  coercion

  Alford and

  Cintolo and

  DOJ and

  Finneran and

  judges and

  KPMG and

  Martinez and

  Miller and

  Stern, Jared Paul and

  of witnesses

  Cohen, Laurie P.

  Cole, David

  Collatos, George

  Committee on Government Standards, ABA

  Common Cause

  common law

  common law fraud

  composing witness testimony

  Comprehensive Drug Abuse Prevention and Control Act of 1970,

  CON Board, State of Alabama

  confidentiality

  Congress, U.S. See U.S. Congress

  conspiracy

  AIG and

  Anzalone and

  Avery and Migliaccio and

  Cintolo and

  Franklin and

  Gleason and

  Hurwitz and

  KPMG and

  Lay and Skilling and

  Leichter and

  Martinez and

  Milken and

  The New York Times and

  Scrushy and Siegleman and

  Serono and

  Singleton and

  Zehe and

  Constitution, U.S.

  contraband, destruction of

  controlled pain-killers. See pain management, medical practice of

  Controlled Substances Act (CSA)

  Cooper, Matthew

  cooperation, citizen’s obligation of

  cooperation, witness. See witness cooperation

  Coordinating Committee on Multilateral Export Controls (COCOM)

  Cordy, Robert J.

  Cormier, Philip

  corporate confidence, loss of

  corporate sentencing guidelines

  corruption

  Martinez and

  in Massachusetts

  Weld and

  corruption tax

  Councilman, Bradford C.

  Coviello, Robert

  Cox, B. Elton

  Cox v. Louisiana

  C.R. Bard, Inc.

  crafting witness testimony. See composing witness testimony

  Cragan, John F.

  credibility judgements, by juries

  Credit Suisse First Boston (CSFB)

  crimes by analogy

  criminal defense attorneys, as civil liberties lawyers

  criminal forfeiture allegation

  criminal law, keeping pace with new developments

  criminal obstruction of justice

  Arthur Anderson and

  Stewart, Martha, and

  “Criminal Penalties for Altering Documents,”

  criminal vs. civil prosecution

  Critical Art Ensemble (CAE)

  Crovitz, Gordon

  CSA (Controlled Substances Act)

  CSFB (Credit Suisse First Boston)

  CTR (Cash Transaction Report)

  culpable state of mind

  Curley, James Michael

  Dalglish, Lucy

  data-mining

  “date-rape” drug

  Day, Samuel, Jr.

  DEA (Drug Enforcement Administration)

  debarment

  defense information, publication of

  deferred prosecution agreement, KPMG

  DeGiorgio, Domenick

  Delgado, Renan

  Department of Commerce, dual use exported items and

  Department of Defense

  Department of Homeland Security

  Department of Justice

  ABA and

  AIG and

  Arthur Anderson and

  attacks on law-abiding society

  attacks on social and professional relationships

  Cintolo and

  Councilman and

  disclosure of confidential sources

  and

  espionage and

  First Amendment and

  KPMG and

  Milken and

  Muntasser and

  National Securities Letters and

  national security and

  options backdating and

  Pentagon Papers and

  Pfeiffer
and

  “Principles of Federal Prosecution

  of Business Organizations,”

  Quattrone and

  Rosen and Weissman and

  selective prosecution by

  Stewart, Martha, and

  Department of State

  dependence, drug

  Derden, Terry

  Dershowitz, Alan

  destruction of contraband

  destruction of documents. See document retention and destruction

  DiCara, Lawrence

  DiMasi, Salvatore

  Dingell, John

  Director of Public Prosecutions

  discriminatory effect

  discriminatory redistricting, Massachusetts

  document retention and destruction

  Arthur Anderson and

  Quattrone and

  Russell and

  Douglas, Napoleon

  Dreeben, Michael

  Drexel, Burnham & Lambert

  Droney, Christopher

  Drug Abuse Prevention and Control Act

  drug addiction

  drug classifications

  drug dependence

  drug diversion, Fisher and

  Drug Enforcement Administration (DEA)

  drug patents

  drug trafficking, physicians and. See pain management, medical practice of

  drugs

  end-of-life situations and

  free samples of

  generic

  medical administration of pain- killing. See pain management,

  medical practice of

  off-label uses of,

  92–94

  dual citizen academics

  dual use materials and equipment

  Dulles, Allan W.

  Duncan, David B.

  earnings, illusory

  eavesdropping

  Edgar, Harold

  educational grants, medical

  Edwards v. South Carolina

  Eichenwald, Kurt

  Electronic Communications Privacy Act of 1986,

  Electronic Privacy Information Center (EPIC)

  Ellis, T.S.

  Ellsberg, Daniel

  emails

  illegal interception of

  See also document retention and

  destruction

  end-of-life situations

  English common law. See common law

  Enron Corporation

  EPIC (Electronic Privacy Information Center)

  equity kickers

  Erbitux®

  Ernst & Young

  Esfandiari, Haleh

  espionage

  The New York Times and

  news media and

  Rosen and Weissman and

  scholarly

  Espionage Act

  Estrich, Susan

  ex post facto laws

  excessive prosecutorial zeal, Jackson on

  Exempt Organizations Division, IRS

  expert advice or assistance to terrorist organizations